- The Washington Times - Saturday, July 11, 2009

A D.C. appeals court struck a blow to the Justice Department’s investigation of a former congressman linked to disgraced lobbyist Jack Abramoff, ruling that separation-of-powers issues bar prosecutors from using potentially incriminating evidence gathered as part of a congressional ethics investigation.

Former Rep. Tom Feeney, Florida Republican, has been under investigation for taking a trip to Scotland that had been paid for by Abramoff, whose excesses came to define Washington corruption and played no small part in Democrats’ winning control of Congress in 2006. Abramoff is serving a four-year prison sentence. The ruling was made June 23 but was unsealed Thursday night.

“I am grateful for the unanimous decision of the United States Court of Appeals,” Mr. Feeney said in a statement released by his lawyer, William Taylor III. “I have said all along that I engaged in no wrongdoing in connection with my trip to Scotland while a member of Congress. I hope that the court’s decision will now bring this matter to a close.”

The Justice Department declined comment on the ruling.

The court’s decision centered on the so-called “speech or debate clause,” which the Constitution states ensures “for any Speech or Debate in either House, they shall not be questioned in any other place.” The purpose of the clause is to “prevent intimidation by the executive and accountability before a possibly hostile judiciary.”

The clause is frequently invoked by members of Congress seeking to thwart political corruption investigations. But Appeals Court Judge Brett Kavanaugh wrote in a concurring opinion that the clause is the equivalent of the president’s executive privilege power and is an important protection for members of Congress.

“In the context of a specific case, the need for evidence usually will seem weightier than those long-term structural safeguards,” Judge Kavanaugh wrote. “But courts must respect the constitutional balance between the legislative and executive branches regardless of the perceived needs of the moment.”

William van Alstyne, a professor at William & Mary Law School in Virginia, said the court’s ruling follows the way the speech or debate clause has been applied in other cases.

“Its application in this case seems to be fairly warranted,” he said.

The criminal investigation into Mr. Feeney began following a House Ethics Committee probe into his 2003 Scotland trip.

Mr. Feeney contacted the committee after press reports emerged about the trip. He agreed to pay $5,643 to the U.S. Treasury to reimburse the cost of the trip after the committee concluded in 2007 that he violated House rules.

A grand jury convened to investigate potential criminal violations and prosecutors subpoenaed for testimony and documents related to the ethics committee investigation. Mr. Feeney’s lawyers fought that request, and a lower court sided with prosecutors before the appeals court overturned that decision.

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